ECJ: Regulation impermissibly limits the free movement of goods
Luxembourg (jur). The fixed price for prescription drugs has not existed in its current form. In any case, it is inadmissible for mail-order pharmacies in other EU countries, ruled on Wednesday, October 19, 2016, by the European Court of Justice (ECJ) in Luxembourg (file number: C-148/15). It leads to unjustified restrictions on the free movement of goods.
Pharmacies in Germany are only allowed to sell pharmaceuticals at specified prices. This results from the price set by the manufacturer plus surcharges, which are set out in a federal regulation (drug price regulation). The wholesale and pharmacy services are compensated with these surcharges. According to the case law of the Federal Court of Justice (BGH) in Karlsruhe, price fixing also applies to mail-order pharmacies in other EU countries; attempts at circumvention have also failed before the BGH (judgment and decision as well as JurAgentur notification of February 26, 2014, file number: I ZR 72/08 and I ZR 77/09). According to BGH judgments from 2010, German pharmacies may therefore only lure their customers with small gifts, discounts or bonus points (so-called Rx bonuses) worth up to around one euro (judgments of 9 September 2010, file number: I ZR 193/07 and I ZR 98/08).
The aim of price fixing is to ensure nationwide supply and also the emergency service of pharmacies. The pharmacies also argue that fixed prices protect acute patients who are not able to compare prices anyway.
The ECJ did not follow these arguments and now agreed with the German Parkinson's Association, a self-help organization that represents the chronically ill. According to its own statements, the association has 23,000 members.
The Parkinson's Association had negotiated bonuses with DocMorris. From 2009, members received a 0.5 percent discount on the purchase price, including for prescription drugs. As with other customers, the mail order pharmacy also assumes half of the additional payment.
On the other hand, the German headquarters sued to combat unfair competition. In their view, the discounts violate the fixed price for medicines.
In the first instance, the Düsseldorf Regional Court had prohibited the bonuses. The Higher Regional Court (OLG) Düsseldorf then submitted the dispute to the CJEU and thus passed over the BGH. It generally asked whether the fixed price for prescription drugs is compatible with the free movement of goods.
The ECJ denied this. The fixed price was "an unjustified restriction on the free movement of goods".
As justification, the Luxembourg judges referred to the great importance of mail order for pharmacies in other EU countries. It was the most important or even the only access for them to the German market. While local pharmacies can also score with their customers through advice and other services, the price is a particularly important competitive factor for mail-order pharmacies. As a result, mail-order pharmacies in other EU countries are particularly affected by fixed prices.
Restrictions on the free movement of goods are permitted in the interest of health protection. However, Germany has not demonstrated that price fixing is necessary to achieve the stated goals.
The Luxembourg judges stated verbatim: “In particular, it was not demonstrated to what extent the setting of uniform prices can ensure a better geographical distribution of traditional pharmacies in Germany. On the contrary, some of the documents submitted suggest that more price competition among pharmacies would promote even supply of medicines because incentives would be set up in areas where the lower number of pharmacies might result in higher prices. ”
There is also no evidence that price competition from mail-order pharmacies could endanger the advisory services and emergency services of German pharmacies. On the contrary, according to the ECJ: "It could also turn out that for traditional pharmacies, if they face price competition from mail order pharmacies, there would even be an incentive to offer more services in the general interest, such as the manufacture of prescription medicines."
In any case, the patients and their health insurers would benefit from price competition, the Luxembourg ruling concludes.
Formally, the Düsseldorf Higher Regional Court must now decide on the dispute. With the ECJ ruling in the back, it can also deviate from the previous BGH case law.
With a new regulation, Germany could in any case legally maintain the price maintenance for pharmacies in Germany. Because healthcare is not harmonized across the EU, only pharmacies in other EU countries can rely on the principle of free movement of goods. A "national discrimination" would be permissible (according to the ECJ on freedom of movement, judgment and JurAgentur notification of May 5, 2011, ref .: C-434/09).
DocMorris welcomed the Luxembourg verdict; it was "A good day for patients in Germany and all of Europe". You could "save again at the DocMorris mail-order pharmacy". There is now "a definitive answer and legal certainty for this," the company in Heerlen said. mwo